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CASES REPORTED THIS \VEEK.
In A snonr CAUSE which was in Mr. Justice Noii'ri=i’s paper on Saturday last no copy of the minutes of the proposed judgment had been left for the use of the judge. His lordship said that in future, if a copy of the proposed minutes was not left in such cases, he should order the case to stand over for a week, and should make the person who was responsible for the omission pay the costs of the standing over. In another short cause the same day his lordship said that this rule would apply to foreclosure actions as well as others.
Tns rnissriin, which we stated last week to be in.course of preparation, of one hundred actions to the list of Mr. Justice KEKEWICII was made on Saturday, the 22nd inst., and issued on the 24t_h. It Wlll be observed that the earliest date on which any of these actions was set down was the 16th of June, 1586, and the latest day the _l lth of December, 1886. It is impossible to predict when the earliest cases in the transferred list will come into the paper; that depends on several considerations, but it seems probable that by the middle of next month the previous list will be exhausted.
Mn. Jusrica CHITTY a few days ago made some pointed remarks 911 the duties and liabilities of receivers. It appeared that a receiver, Instead of paying money into court and passing his accounts, paid the 1!!011_cy he received to his solicitors, who became bankrupt. Mr. Justice CIIITTY charged the receiver with interest at four per cent. on the balances in his hands, and took the opportunity of °bF@_r""18, by way of warning to receivers, that solicitors for receivers sometimes seemed to think that delay was of no im§°1'fIince in passing the accounts. It was not sufficiently remem
Bred that the duty of receivers was to protect the fund and to see that the money got into court.
The oldest member of Serjeant’s-inn is Seijeant GEORGE Ariiiivsos, who became a serjeant in 1854, and who has for several years practised at Bombay, while the junior serjeant is Lord Justice LINDLEY, who received the coif in 1875, on being appointed a puisne judge of the Court of Common Pleas.
In CONNECTION with the transfer of causes, the complaints most frequently heard have arisen by reason of the causes coming into the daily list before the parties are ready, or being so near the head of the list that suflicient notice to prepare briefs and evidence has not been afforded to the parties. There is, however, it appears, another aspect of the result of transfers, and another cause of complaint not usually heard. A cautious solicitor, seeing that a case is likely soon to come into the paper (say fifteen off), wires to his client, who is abroad, to come over to England according to previous arrangement. The client starts on his long journey, and there is then no opportunity of using the telegraph to inform him that his case has been transferred to another judge. and that, instead of being fifteen ofi’, it is now more than a hundred off. This is a source of expense which may not arise very frequently, and we can see no remedy for it unless, indeed, the circumstances should induce the Lord Chancellor to comply with an application for a re-transfer.
A PURCHASER who completes without notice of an act of bankruptcy by the vendor, rmd before a receiving order is made ayaiuet him, is safe, even if a receiving order is subsequently made against the vendor in respect of an act of bankruptcy committed before completion: Bankruptcy Act, 1883, s. 49. It follows that in many cases a prudent purchaser will search for receiving orders against the vendor before completion.' By some oversight, neither the Bankruptcy Act, 1883, nor the rules made under it, make any provision for the registration of receiving orders. The Board of Trade has set ii good example to all public ofiices by taking an enlightened view of their duties, and keeping a register that they were not strictly bound to establish. The register is kept at 34, Lincoln’sinn-fields; it is divided into two parts, one containing London, and the other country, receiving orders, and it consists of copies of the tabular statements of receiving orders as they appear in the London Gazette. The register is arranged under the surnames of the debtors, all names beginning with the same letter being collected together, but not being in alphabetical order inter se. It would probably add to the convenience of the public if some provision could be made for oflicial searches.
We REPORT in another column a case of Re Greys Breioery Ca, which, if it is to be taken as laying down a general principle, W111 very seriously affect the remuneration of solicitors on sales of property subject to incumbrances. It is true that the learned judge said that the sale in question was not a_ sale subject to incumbrances, and that he decided the case according to the special facts; but as he immediately afterwards intimated his view on a general point—viz., that he could look at the substance of the matter, and was not bound by the contract for sale—we are entitled to assume that his decision has, to that entent, a general application. Its efiect appears to be that, 111 511185 subject to incumbrances, the vendor’s solicitor may berestricted to the scale fee on the balance received by the vendor, which 111 moi-It cases is comparatively small. To hold that in such cases the solicitor’s fee must be calculated on the balance cannot be right; for transactions of this kind are often of the most complicated and diflicult nature, and the difliculty is inci-eased_by the existence Of the incumbrances. Of course, it might be said that it is open to the solicitor to elect; but this is more easily said than done. Solicitors are loath to adopt a course which may give rise to the notion that they are endeavouring to obtain more_t_han they are justly entitled to ; besides, it is impossible for a solicitonto understand the nature of the business until he has gone into it to some extent, and it will then be too late for him to elect (Ra A118". ""18, p. 185). Mr. Justice Cmrrr admitted that, if he only looked az the formal contract for sale entered into by the vendor _in thebretcegll case, he would have to decide in favour of the so1icitor,4u 6
held that he was not bound by that contract, and that it was competent for him to go behind it and look at all the circumstances of the case, and, having done this, he deprived the solicitor of the commission because he found that I. person other than the vendor —-viz., the original owner——was the person principally interested in the sale. And, according to the taxing master’s reasons, it would appear that as the greater part of the proceeds went into the original owner’s pocket, he ought to pay a proportionate share of the costs, and the solicitor must put up with the loss because he had not a binding contract from this person to pay his costs. The persons who received the principal part of the proceeds of the sale in question had nothing to gain by it beyond what was secured to them by their own contract, the costs in connection with which, it is assumed, had already been paid; and why they should be called upon to pay again-—they being only concurring partics—does not seem quite clear. The judge, however, seems to have treated them as joint vendors. We venture to think that the sale in question was, in substance, a sale subject to incumbrances, and as such the solicitor was, under rule 9 of schedule I. part I. of the Remuneration Order, entitled to charge on the whole amount of the purchasemoney. When the Remuneration Order was made, the scales therein provided were intended to cover the rough transactions and the smooth ones, but the tendency of the authorities seems to be to make it rough for the solicitor all round. If the solicitor loses in pocket, there is no remedy for him, as the scale must be adhered to; but if the scale gives him anything more than he would be entitled to before it came into operation, his charges must be cut down. We hope that the Incorporated Law Society, who, it was stated in court, were supporting the contention of the solicitors, will not allow the matter to remain as it now stands.
Tun LEGAL POSITION of the travelling public has been very much improved during the past week. This change is due to the decision of the Court of Appeal in T/re Bcmina, Armstrong v. Mills, overruling Thorogood v. Bryan (8 C. B. 115). The latter case had settled that a passenger was so far identified with the driver of the vehicle in which he was travelling that contributory negligence on his part would prevent the passenger from recovering damages against the owner of another vehicle by which he was 'lD]'\ll‘€(l. This was, of course, upon the ground that the relationship between the two was analogous to that between master and servant. The facts of T/102-ogood v. Br_1/an were briefly these :-—A passenger alighted from an omnibus which had stopped in the middle of the road; another omnibus, following too rapidly, ran over him, and he died from the injuries received. An action was brought by his representative, under Lord Campbell’s Act, against the owner of the second omnibus, but failed, owing to the contributory negligence of the driver of the first omnibus in not drawing up to the kerb-stone. But the identification of the passenger with the driver, upon which the decision was founded, was_a great extension of a principle that, even in its usual application, is often diflicult to justify. Hence the decision was regarded with dissatisfaction, and it has long been anticipated that it would be overruled upon an opportunity arising. Such oppor. tunity the recent case has afforded, and the Court of Appeal has unhesitatingly taken advantage of it to abolish a fiction which had no foundation in fact. The identification of a master with his servant is a principle well known to the law, and its extension to the more general case of principal and agent will probably not be disputed. It is usual to justify it by saying that the master has exercised his discretion in Cll00Sll]o his servant, and must be held liable if he has chosen a Cllbfclesg one. This was applied in Tkorogoocl v. Bryan, on the ground that the passenger had selected his omnibus. But the Court of Appeal has now got nearer the truth. In very few cases has a passenger by a public conveyance any real chance of selection and, even if he has, the analogy of master and SOX'\‘Z1l1tdQe5 not in the least hold, for he has no control of any kind over the driver Moreover, the Master of the Rolls pointed out one result of the pretended identification which makes the matter very clear If it many emsts’ not only are the Passengers’ Tights thereb diminished but a new and unexpected liability mugt be hid ,1 oi him - ’ much as he becomes actually liable for the driveIi"s ne liltiThis, of course, is too absurd. It is clear, therefore, tghagte the
fiction of identification with the driver cannot be used, and in future a passenger who is injured in a collision or other accident involving two vehicles or ships, and which is due to the negligence of each, will be able to recover against the owner of either. In the case just decided, three persons who were on board Tlu Biubire were killed in a collision between that ship and The Bcrnina. Both vessels were in fault. One of the deceased was an officer directly responsible for the collision; he therefore had no remedy, but the representatives of the other two recovered against the owners of The Bernina. The law is now settled in accordance both with the most recent American decisions and with the decided tendency of opinion among ourselves.
Ir IS UNFOBTUNATELY raun that the length of time now lost between the setting down of a chancery action for hearing and the date of the actual hearing does not afford a satisfactory matter of contemplation. It was thought that the institution of originating summonses would, to a certain extent, have disposed of this fruitful source of delay and consequent complaint. “A Country Solicitor,” writing to a contemporary, directs attention to the fact that, although he takes out an originating summons, he does not get what hc wants or expects, but encounters intolerable delay, and, owing to the judges’ arrangements, “an absolute uncertainty as to when the summons may be disposed of.” This uncertainty arises from the matter being referred by the chief clerk to be disposed of by the judge. Such a case now goes into the general list, and is disposed of in its turn with actions commenced by writ and incumbered with pleadings. There can be no doubt however that many originating summonses are disposed of by the chief clerks, and to that extent the new system has been a success. But what is the extent of this success? Judging by the number of adjourned summonses which come into the daily cause lists, there must be a large number of proceedings commenced by originating summons which might with equal propriety have been commenced by writ. The only consolation to be offered to those who commence procecdin gs by this process is that they are, in one respect, better ofl than their brethren who commenced by writ. Though they have the disappointment of not having their case decided as soon as expected, they can, even if adjourned into court, set down their case in the cause book at an earlier time than it would have been set down if commenced by writ. Until, however, there are more judges to dispose of actions in the Chancery _Div1si01]» or a better arrangement of the work of the existing judges made, such evils as that complained of by “ A Country S0l10ll79l' must prevail. And we are sorry to say that no better arrangement seems to be in contemplation.
COVENANTS RUNNING WITH THE LAND.
Urvnaii ordinary circumstances it is only the original parties to B contract who can sue upon it, or who are bound by it—1n_°tl1@1' words, who can claim the benefit or are liable to the obligation _0r the burden of it. Between such persons there is said to_ 8111-it privity of contract. But it the contract refers to land, and If 011° or both of the contracting parties have an estatc in it, then the contract is sometimes allowed to follow that estate into the 11111155 of assigns. The privity of estate in such cases is allowed to take the place of privity of contract, and the assigns are treated in law as though they had been originally parties. The particular 00"‘ tract to which these remarks apply is a covenant, and _vVl19!1_fh_° covenant in this manner is transferred to subsequent assigns 1" 15 said to run with the land. _ . The above is an outline of the theory of covenants running Wlth the land at law, or at least so far as the matter is governedby the common law. To speak of them, however, as running with the land, is clearly wrong, for it is not with the land as such fllfil the covenants in any case run, but with particular estates "1 the land. This distinction is fundamental, and upon it rests the importance of the idea of privity of estate. As to tll15: Pnfirei over, a distinction must be taken. If A. and B. are the orlswfl contracting parties, and ii B. assigns his interest to C-1 we may require privity of estate between A. and B. as well as between